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Deference to the Executive in the United States after 9/11: Congress, the Courts, and the Office of Legal Counsel

The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. A recent criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, this criticism rests on a misunderstanding of the tradeoff between rules and standards. Some scholars who have despaired of congressional or judicial constraint of the executive, but believe that some sort of constraint is desirable, have suggested that the executive’s own legal adviser, the Office of Legal Counsel, could provide such a constraint. In fact, OLC cannot plausibly be considered a constraint on the executive; its function is the opposite – to expand rather than to contract executive power.